Protecting the Sage-Grouse

Case Status: In Progress

Authors

Sean NixonLawyer

Randy ChristensenLawyer

The City of Medicine Hat and an oil and gas company are challenging a federal Emergency Order that was put in place to protect the greater sage-grouse. They are also mounting a challenge to the provisions of the Emergency Order provisions in the Species at Risk Act (SARA) that allowed the government to issue the Emergency Orders, arguing that they are outside the jurisdiction of Parliament and therefore unconstitutional.

Ecojustice lawyers, acting on behalf Alberta Wilderness Association, Wilderness Committee, Nature Saskatchewan and Grassland Naturalists, were instrumental in securing the order to protect the sage-grouse. Ecojustice lawyers are representing our clients, who are intervening in the case to support the Federal Government’s position that the Emergency Order (and the provisions of SARA on which it relies) should stand.

The sage-grouse, which was once found in sage-brush grasslands across the country, is now found only in parts of southeastern Alberta and southwestern Saskatchewan, where it receives little protection from the provincial governments. Nearly 90 percent of Canada’s sage-grouse population died off between 1988 and 2006 as a result of oil, gas and other development in the areas where sage-grouse spend the winter, breed, nest and raise their young. The Emergency Order endeavours to save the endangered bird from extinction by restricting construction and loud industrial noise near its habitat during certain times of the year.

The Emergency Order applies to 1,276 square kilometers of provincial Crown land and 356 square kilometers of federally protected land, which includes land leased by the Federal Government from the provinces. Private land is not covered by the Order.

Why is Ecojustice Involved?

The longstanding fight to protect the sage-grouse is a perfect example of the interaction between energy development, habitat disruption, and species loss. Along with our goal of protecting the sage-grouse from extinction, we are involved with this case because it calls into question the constitutionality of SARA. The federal government’s emergency order and safety-net powers under SARA provide some of the only legal protection for terrestrial species-at-risk in provinces like Alberta and British Columbia that have essentially no provincial endangered species laws.

What would a win mean?

This case is ultimately about upholding previous victories in order to ensure the continued survival of the sage-grouse and other species at risk in Canada. In addition, the courts will be asked to address a long-standing question about the extent of the federal government’s powers to protect species-at-risk on provincial lands. A win would affirm the ability of the Federal Government to protect species and habitat in provinces that do not have strong endangered species legislation in place.